Program is ‘more progressive’ in easing penalties for possession
Smoke a joint as an adult at home in Los Angeles, and it’s perfectly legal. Carry pot in Fayetteville, Ark., and you might get a warning from police. Caught with marijuana in Philly? Pay a civil fine.
Pack a bowl in Houston starting Wednesday, and you could end up in drug education class for four hours.
A new policy set to roll out this week puts Harris County at the forefront of national efforts to keep small-time pot smokers out of jail, joining a growing move to relax or eliminate criminal penalties for possession of small amounts of marijuana.
Anyone found with less than 4 ounces — a misdemeanor under Texas law — now will have the option to avoid criminal charges altogether.
It’s one of the “more extensive pretrial marijuana diversion programs in the nation,” said Miriam Krinsky, a board member of Harvard Law School’s Fair Punishment Project. “This is the first of many steps by prosecutors … to advance thoughtful, smart and fair approaches to criminal justice practices.”
Rules vary from city to city and state to state. Eight states and the District of Columbia have made even recreational use of marijuana legal, and 20 other states have approved medical marijuana. In states where pot is not legal, some cities and counties have instead replaced jail time with fines or community service or made possession a civil, rather than criminal, violation.
Harris County District Attorney Kim Ogg’s new policy to allow a drug-education class without a citation or arrest seems to be unique, however, by keeping offenders out of court even for larger amounts of marijuana than most cities allow.
“I would venture to say that the plan for Harris County, as Ogg has presented it, edges toward the more progressive end,” said Katharine Neill, the Glassell Fellow in Drug Policy at Rice’s Baker Institute.
The issue remains a political push and pull. Law enforcement officers across Texas are sharply divided. A bill to decriminalize possession has been proposed in the state Legislature but is unlikely to pass. The Trump administration announced last week plans for renewed enforcement against recreational marijuana use, particularly in states where it is legal.
And Texas cities such as El Paso, Fort Worth and Sugar Land continue to arrest offenders and put them in jail, if only for a few hours.
What results is a patchwork of approaches and an ongoing debate. Did Harris County take it too far? Or not far enough?
The spectrum of options is vast. Jurisdictions can simply issue directives to police. They can alter the punishment. Or they can adjust the very nature of how the crime is — or is not — charged.
But the reasoning is remarkably consistent: Save police time. Better use taxpayer dollars. Keep non-violent offenders out of jail.
Following the leaders
In Harris County, law enforcement officers who find probable cause to arrest someone with fewer than four ounces of marijuana will do two things: confiscate the drugs and have the person sign a contract promising to take the drug education class. The pot and paperwork will be dropped off at the station at the end of the shift.
If the offenders complete the class, the drugs are destroyed, the contract is filed away and there remains neither an arrest nor court record. If they don’t, an arrest warrant will be issued and a regular criminal case filed.
The program leaves no paper trail for offenders and encompasses up to 4 ounces, which would fill about two sandwich bags with the leafy green plant. It’s not an amount that would protect drug dealers, but it safeguards personal uses, said Dr. William Kelly, the director of the University of Texas at Austin’s Center for Criminology and Criminal Justice.
“Our problem in this country is not recreational drug use, it’s substance-use problems, people who get addicted or dependent or are abusing drugs,” he said. “We have criminalized substance-use disorders for decades when the reality is that it is really a public health problem.”
By comparison, New York and Chicago have already taken steps to decriminalize marijuana.
New York City Mayor Bill de Blasio and Police Commissioner Bill Bratton in late 2014 announced a policy to allow police to issue a summons instead of arresting someone with a small amount of marijuana, and no criminal record follows. In Chicago, possession of any substance containing cannabis brings a citation and possible fine.
California voters several months ago passed a proposition to make possession by adults legal for recreational use. But it took two years of work in Illinois to pass a state policy similar to the citation program approved in Chicago, state Sen. Heather Steans said.
“To date, knock on wood, it seems to be going well,” Steans said.
The new rules for Harris County emerged like an island in a state that, on the whole, treats marijuana possession harshly.
It replicates a similar pattern in Florida, where Miami-Dade County has given police the option of issuing civil citations but the city of Miami has not.
Movement on the issue has occurred in Texas since at least 2007, when the Legislature passed a bill that allowed local jurisdictions to use cite-and-release programs to issue tickets instead of hauling people to jail.
The city of Austin took up the offer. In 2009 — under the helm of Art Acevedo, who now leads the Houston Police Department — police there began using the new policy.
The process holds people accountable and leaves them with a criminal record but saves officers time, Assistant Chief Troy Gay said.
“You’re always looking for ways to be more efficient and effective with the resources that you have,” he said.
Acevedo joined Houston Mayor Sylvester Turner and Sheriff Ed Gonzalez in backing Ogg’s new policy. But not everyone has been receptive.
Lt. Gov. Dan Patrick and Montgomery County District Attorney Brett Ligon said Ogg would turn Houston into a sanctuary city for low-level drug crimes. Sheriffs in surrounding counties have said they do not agree with the plan.
Officials in Fort Worth held firm on arrests for marijuana possession, and in El Paso, possession of even one joint will lead to arrest and jail. San Antonio officers, however, stress they can use their discretion in deciding when to make an arrest.
Closer to home, Fort Bend County District Attorney John Healey said he doesn’t condemn the actions in Harris County, but he doesn’t plan to replicate them.
“It is the law,” Healey said. “It should be enforced, and I believe it benefits the populace to do so.”
Dallas City Councilman Philip Kingston, however, said he plans next month to renew efforts for a cite-and-release program for possession of small amounts of marijuana. Efforts last year failed, but this time he expects it will easily pass because officials realize it affects minorities in far greater numbers than whites.
“This is one of the most glaringly racially imbalanced laws that I’ve ever seen,” he said.
Other U.S. cities have started with small changes. In Fayetteville, voters passed a measure in 2008 that declared misdemeanor marijuana arrests a low priority for police.
The move reinforced the unofficial policy in a city that is home to the University of Arkansas, where residents push to “Keep Fayetteville Funky.”
As Sgt. Craig Stout put it, there are “bigger fish to fry.”
In New Orleans — where people drink yard-long margaritas openly in the street — the City Council in 2010 unanimously adopted a far more lenient policy. There, possession of up to 2.5 pounds is treated as a criminal municipal offense but doesn’t result in jail time. Instead, offenders pay a fine or complete community service.
“We can’t decriminalize it,” said Council Member Susan Guidry, who pushed through the ordinance. “Only the state can do that. So we did what we could do to make it so that people are not going to jail for marijuana possession.”
The Philadelphia City Council pushed the boundary still further in 2014 by making possession of small amounts a civil violation, punishable by a fine. In Tennessee, Nashville and Memphis did the same.
Philadelphia Mayor Jim Kenney said he was sold on the idea as a councilman after learning of the adverse effects marijuana arrests can have. People lost jobs, couldn’t pay rent and became more likely to commit other crime, he and other advocates said.
Work in progress
The Harris County policy will remain a work in progress, even as officers begin diverting pot users out of the criminal justice system.
Local law enforcement agencies have been briefed, and the new offender agreement forms have been drafted. Street-level officers should be ready when the new policy kicks in at midnight Tuesday.
Possession in drug-free zones around schools will remain a crime, and users caught in those areas will not be eligible for the program.
“There has been buy-in across the board,” First Assistant District Attorney Tom Berg said. “The vast majority of comments are positive and that’s across the political spectrum.”
The administration will continue to evaluate the program to make sure it is working as planned, including the estimated $26 million annually in savings for the jail, prosecutors, courts, defense attorneys, crime labs and officers’ time.
“We will monitor it,” Berg said. “If it doesn’t appear to be what we intended to do, we will tweak it and re-evaluate periodically.”